Caveat 20 May 2013 at 11:50PM edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate 148 replies 37.7K views

freda11

Brill, fantastic many many thanks!!!!

freda11

I emailed the solicitor, but she is checking with the company??????????

freda11

now one of our witnesses is saying (who witnessed the signing of the will) that my hubby was present in the room when the will was being signed/witnessed. The solicitor has already filed a lark v nugus to say no one else was in the room at the time of signing/witnessing. We think she is getting missed up with witnessing the Power of Attorney, as the solicitor, the deceased my hubby and her were present. She also witnessed dads signature and my husbands. Due to problems and complications in her home life she does not want to give a witness statement or go to court, so her report may not be acted upon (she has not actually given a statement, just a phone call). But as she is witness to the signature I presume she could be called upon by the other side? she does ascertain that dad was of sound mind and new exactly what he was doing prior and after the will.

madbadrob

Id not worry to much to be honest

Rob

freda11

Does it not make the will invalid though, someone else being in the room when it was signed. Even though he wasn't in the room! Obviously we will now have to prove it, but as I said the solicitor has already stated no one else was in the room.

madbadrob

Its the fact the solicitor says no one was there that I was referring to as not to worry and no I dont see how someone else being there when the will was signed and witnessed would invalidate the will but I am not so clear on points of law there

Rob

troubleinparadise

freda11 wrote: »

Does it not make the will invalid though, someone else being in the room when it was signed. Even though he wasn't in the room! Obviously we will now have to prove it, but as I said the solicitor has already stated no one else was in the room.

Another person being in the room whilst the will was being signed/witnessed wouldn't invalidate it.

Instructions regarding a Will should be taken in the absence of anyone who may stand to benefit or who may have influence over the person making the will.

For a Will to be valid two independent witnesses are required so that they can be contacted for confirmation the person making the Will understood and knew what he was signing.

But your witness now changing her recollection of events might throw up the question of the solicitor's response on the Lark v Nugus letter and its' accuracy; but that would also then challenge the solicitor's recollection.

Are there solicitor's file notes for that event which would back up the solicitor's version? Another way of looking at it is that there is nothing for the solicitor to gain in giving an inaccurate response.

As you say, the witness felt that FIL understood and knew what he was signing at the time - hopefully that will override the matter of exact memory of who was there at the time.

freda11

Hi thanks for the replies. Unfortunately the solicitor had very fews file notes and nothing regarding anyone being in rhe room at the witnessing of the will. We wont ask her to make a statement and as she has stated she doesnt want to that suits both of us. Obviously if it went to court seeing as she was the wirness to the signature i presume she would have to? Does it not make a difference if it was the wxecutor and beneficuary who was in the room at the time of witnessing as opposed to someone not connected? Even though we know he wasnt! Hopefully a judge would favour the solicitors version of events over hers

troubleinparadise

I would assume that as she was a witness, if it went to court she would have to attest if asked to do so - that being the point of being a witness to a will, and I'm not sure that just not wanting to because of personal circumstances (other than ill health) excuses you from appearing in court if ordered to do so.

And again, the point of being a witness is to attest that the person signing their will knows and understands what is in it, and that they weren't under any coercion. Otherwise she shouldn't have witnessed, unless she too was being coerced (and that wouldn't necessarily mean that the person forcing the coercion had to be present in the room anyway).

I'm not raising that as a suggestion that that is what happened, but this could be kept going endlessly if every action were to be questioned!

You don't have to answer this, but what has happened to raise this question of exactly who was in the room at the time? Or is it just that the situation is continuing? Your determined complainant certainly seems to be exploring every avenue of possible monies (eg the pension).... His solicitor must be being kept busy!

Sorry this is rumbling on - how are the stress levels? :eek:

freda11

My stress levels are going thru the roof lol. The otherside is saying my hubby was in the room. So when my solicitor prepared the witness statement questionnaire one question was who was in the room when the will was witnessed. As i said he was when they signed and witnessed the poa but then he was asked to leave the room whilst the others signed and witnessed will. I remember him coming into the other room. But could i give a statement?